The Insolvency Service v Becker & Anor  EWHC 2546 (Fam)25 September 2020
The Insolvency Service brought criminal proceedings against the tennis player Boris Becker, alleging that he had failed to disclose all his assets. One count of alleged non-disclosure related to the existence of the BB Settlement, a trust established pursuant to an order under Schedule 1 Children Act 1989 to provide accommodation for his daughter. The trust assets comprised a flat and once the daughter ceased tertiary education, 99% of the value of the flat was to revert to Mr Becker. A trustee of the BB Settlement provided Mr Becker’s trustee in bankruptcy with a number of court orders and Mr Becker’s witness statement relating to child maintenance enforcement proceedings in 2015/16. The trustee in bankruptcy sought permission to introduce these statement into the criminal proceedings.
Held – s 12(2) Administration of Justice Act 1960 provides that the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication. As no such order had been made, there was no prohibition on the BB trustee providing the bankruptcy trustee with the orders or their subsequent use in criminal proceedings. However, the witness statement was a different matter. Materials covered by section 12(1) of the Administration of Justice Act 1960, which are not excepted by PD 12G para 2.1, must not ever be disclosed without the court's authorisation; . Section 12(1)(a)(iii) says it would be a contempt of court to disclose documents relating wholly or mainly to the maintenance or upbringing of a minor’ – such as this statement.
The application for permission to use the statement fell under FPR 22.20 as Sch 1 proceedings were financial remedy proceedings governed by Part 9. This provided that the statement could only be used with permission. Permission was refused for several reasons.
First, the particular charge was described by Mostyn J as ‘exceptionally weak’, as Mr Becker had disclosed the trust’s existence and provided the trust deed. Second, the trustee obtained the statement through an action constituting contempt. Third, case law relating to the equivalent CPR 31.22 indicated that some good reason had to be shown for disclosure. While there may be a proper purpose in using evidence in criminal proceedings, ‘where the original proceedings were held in private and were cloaked by confidentiality that consideration would weigh heavily in the discretionary exercise’; , citing Emmott v Michael Wilson & Partners Ltd ⁠ EWCA Civ 184. In any event, the statement was inadmissible in criminal proceedings as it was produced by compulsion (see Official Receiver v Skeene  EWHC 1252 (Ch) and note that while that case applied to witness statements, the Civil Procedure (Amendment) Rules 2021. Implicit in that was an assurance that it would not be used in criminal proceedings (but see contrary conclusions in Gilani v Saddiq)  EWHC 3084 (Ch)). It was ‘very difficult to visualise circumstances where the court would exercise its discretion for the use of a statement in such proceedings; although Mostyn J speculates that a future court may consider the possibility of disclosure for derivative use; .